Observation (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Panama (Ratification: 1958)

Autre commentaire sur C087

Observation

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The Committee notes the Government’s detailed reply to the observations made by the International Trade Union Confederation (ITUC) in 2012. The Committee also notes the observations made by the ITUC on 1 September 2015 and requests the Government to provide its comments on this subject. The Committee also notes the observations of the National Confederation of United Independent Unions (CONUSI) and the National Council of Organized Workers (CONATO), received on 31 August 2015, as well as the Government’s detailed reply to these observations and to earlier observations from these organizations that were received on 14 March 2014. The Committee further notes the observations of the International Organisation of Employers (IOE) of September 2013 and the Government’s comments in that regard. Lastly, the Committee notes the observations of the IOE received on 1 September 2015, which are of a general nature.

The Committee recalls that in its previous comments it trusted that the Government would deal with the issue of the refusal of the administrative authorities to grant legal personality to a number of unions, as raised by the ITUC, the National Federation of Associations and Organizations of Public Employees, CONUSI and CONATO. In this regard, the Committee notes with interest that, according to the Government’s indications, the granting of legal personality to trade unions has been normalized since 1 July 2014. According to the Government’s information in its report, over the past year legal personality has been granted to a total of 12 unions, compared with only nine over the previous five years.

Follow-up to ILO technical assistance. In its previous comments, the Committee noted with interest that, through the good offices of an ILO technical assistance mission, on 1 February 2012 representatives of the Government, CONATO, CONUSI and the National Council of Private Enterprise signed a tripartite agreement, as a result of which two committees were established: the Implementation Committee (with the objective of seeking forms of consensus to bring the national legislation into harmony with the provisions of the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)); and the Committee for the Rapid Handling of Complaints relating to Freedom of Association and Collective Bargaining (the Complaints Committee). The Committee notes that on 11 June 2013, at the Tripartite Meeting of the Delegation of Panama (which occurred in the context of the 102nd International Labour Conference) the social partners undertook to reactivate the meetings of the committees established under the tripartite agreement of February 2012, but suspended since November 2012. The Committee recalls that the Implementation Committee had undertaken to address the following pending legislative issues:

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations

-The requirement that there may not be more than one association in a public institution, and that associations may have provincial or regional chapters but not more than one chapter per province, under the terms, respectively, of sections 179 and 182 of the Single Text of Act No. 9, as amended by Act No. 43 of 31 July 2009;
-the requirement of too large a membership (10) for the establishment of an employers’ organization and an even larger membership (40) for the establishment of a workers’ organization at the enterprise level, under the terms of section 41 of Act No. 44 of 1995 (amending section 344 of the Labour Code), and the requirement of a high number (40) of public servants to establish an organization of public servants under section 182 of the Single Text of Act No. 9;
-the denial to public servants (non-career public servants, as well as those holding appointment governed by the Constitution and those who are elected and serving) of the right to establish unions.

Article 3. Right of organizations to elect their representatives in full freedom

-the requirement to be of Panamanian nationality in order to serve on the executive board of a trade union (the Government indicates that, although this limitation has been removed from the Labour Code, it remains in the Constitution).

Right of organizations to organize their activities and to formulate their programmes in full freedom

-legislation interfering with the activities of employers’ and workers’ organizations (sections 452(2), 493(4) and 494 of the Labour Code) (closure of the enterprise in the event of a strike and prohibition of entry to non-striking workers); the obligation for non-members to pay a solidarity contribution in recognition of the benefits derived from collective bargaining (section 405 of the Labour Code); and the automatic intervention of the police in the event of a strike (section 493(1) of the Labour Code);
-the prohibition on federations and confederations from calling strikes, the prohibition on strikes against the Government’s economic and social policy, and the unlawfulness of strikes that are not related to an enterprise collective agreement; the authority of the Regional or General Labour Directorate to refer labour disputes to compulsory arbitration in private transport enterprises (section 452 and 486 of the Labour Code); and the obligation to provide minimum services with 50 per cent of the staff in the transport sector, as well as the penalty of summary dismissal of public servants for failure to comply with minimum services in the event of a strike (sections 155 and 192 of the Single Text of 29 August 2008, as amended by Act No. 43 of 31 July 2009).

In this regard, the Government indicates that, as agreed in the record of the Tripartite Meeting of the Delegation of Panama of June 2013, the Implementation Committee undertook to deal first with issues relating to the conformity of labour legislation respecting the public sector. The Committee notes that: (i) after two years of infrequent activities, nine working meetings of the Implementation Committee were held in October and November 2015, in which various agreements were reached on subjects relating to the collective rights of public sector workers (the right to organize, the right to collective bargaining, the right to strike and the settlement of disputes); (ii) the Government indicates that the objective of these meetings is to reach consensus on the various subjects with a view to subsequently drawing up draft legislation on the collective rights of public servants; and (iii) if consensus is achieved among all parties on the draft legislation, it will then be submitted to the executive authorities with a view to its referral to the legislative authorities for adoption.

The Committee welcomes the progress achieved in the work of the Implementation Committee and the agreements reached in its working meetings, and particularly those recognizing the constitutional right to freedom of association of public servants. However, the Committee observes that some of the agreements reached are not necessarily in accordance with its previous comments, particularly with regard to the need to allow trade union pluralism in public institutions and the need to reduce the minimum number of members required for public servants to be able to establish organizations. Under these conditions, the Committee hopes that the draft legislation that will be prepared in the near future will recognize the possibility for public servants to establish more than one organization for each institution, if they so wish, and to reduce to a reasonable level the requirements regarding the minimum number of members necessary to establish an organization of public servants.

The Committee recalls that other issues relating to the private sector remain pending and notes the Government’s indication that they have not yet been dealt with by the Implementation Committee. The Committee firmly trusts that the Implementation Committee will continue to make its best efforts, taking into account the comments made by the Committee, to bring the law and practice into full conformity with the Convention. The Committee requests the Government to provide information on the agreements reached in the meetings of the Implementation Committee and on the draft legislation on the collective rights of public servants that is being prepared, and on the other measures adopted to ensure the full conformity of the legislation with the Convention.